On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, DOP Docket No. 2009-2581.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Cuff and Payne.
John Henriques, a Newark Police Department detective, appeals from a final decision of the New Jersey Civil Service Commission Merit System Board denying Henriques's request for a hearing on his major disciplinary appeal as untimely. We affirm.
The record reflects that, in August 2008, investigators assigned to the police department's Alcoholic Beverage Control office, as a practical joke, convinced a new officer to dress as a woman so that he could participate in an alleged undercover operation. They then photographed the officer and circulated the photographs throughout the police department and Newark City Hall. Sergeant James Lopez, the investigators' supervisor was informed of the prank before it took place, and he did nothing to stop it. Detective Henriques was a willing participant in the joke. Charges were brought against both Lopez and Henriques, department hearings took place, and each was personally served with a Final Notice of Disciplinary Action (FNDA) on November 4, 2008. Lopez was suspended without pay for eight days, commencing on November 24, 2008 and ending on December 3, 2008; Henriques was suspended without pay for six days beginning November 10, 2008 and ending November 17, 2008.
The FNDA informed the recipients of their appeal rights, stating:
APPEAL PROCEDURE TO THE EMPLOYEE: You have a right to appeal disciplinary actions: (a) suspension or fines of more than five days at one time . . . . Your letter of appeal must be filed with the Merit System within 20 days of receipt of this form.
Counsel for the men timely appealed the FNDA issued to Lopez on November 7, 2008, but failed to timely appeal the FNDA issued to Henriques. Counsel recognized the omission in January 2009, and by letter dated January 13, 2009, sought to remedy the mistake by filing a late appeal with respect to Henriques and requesting that the Board accept it and add Detective Henriques's appeal to the timely-filed appeal of the Lopez matter.
In a final decision issued on February 4, 2009, the Director of Merit System Practices and Labor Relations for the New Jersey Civil Service Commission declined to accept the appeal because it was not perfected within twenty days of receipt of the FNDA. This appeal followed.
N.J.S.A. 11A:2-15, which governs the procedures for appeals such as that sought to be filed on Henriques behalf, provides in relevant part that:
Any appeal from adverse actions specified in N.J.S. 11A:2-13 and subsection a(4) of N.J.S. 11A:2-6 shall be made in writing to the Civil Service Commission no later than 20 days from receipt of the final written determination of the appointing authority.
See also N.J.A.C. 4A:2-1.1(b) (requiring, unless a different time period is stated, that an appeal must be filed within twenty days "after either the appellant has notice or should reasonably have known of the decision" being appealed); N.J.A.C. 4A:2-2.8(a) (requiring that an appeal from a FNDA be filed within twenty days of receipt by the employee, and stating that receipt of the notice by the employee's attorney on a different date does not affect the appeal period).
The Supreme Court construed the predecessor to N.J.S.A. 11A:2-15 in Borough of Park Ridge v. Salimone, 21 N.J. 28 (1956). In that case, the Borough's Chief of Police filed his appeal from his dismissal following entry of a judgment of conviction against him for bookmaking beyond the ten-day period then established by statute. Although the appeal was initially rejected by the Civil Service Commission, on reconsideration, it accepted the matter, finding that it could consider an appeal so long as ...